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Styne v. Stevens2/8/2000
Proc., § 657; Hand Electronics, Inc. v. Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, 869.) Stevens contends that three of the other theories on which she moved for a new trial and not specified as grounds for new trial by the trial court also constitute alternative bases to support the trial court's order. Those grounds are attorney misconduct and surprise based upon improper closing argument and the failure of the trial court to instruct the jury on the doctrine of illusory consideration.
a. Attorney misconduct and surprise
The scope of permissible argument is very broad. Counsel are entitled to state their views as to what the evidence shows and the conclusions to be drawn therefrom. Counsel may argue based upon not only facts in evidence but also on reasonable inferences which may be drawn from the facts. (McCullough v. Langer (1937) 23 Cal.App.2d 510, 522.) Counsel may not, however, misstate the evidence or argue matters not in evidence. (See McCann v. Municipal Court (1990) 221 Cal.App.3d 527, 529.) To justify a new trial on the grounds of accident or surprise, Stevens must demonstrate that she was suddenly placed in a position resulting in prejudice through no fault of her own, and that the surprise is one which she could not have prevented through due diligence. (See Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th 1791, 1806.)
In order to preserve the issue of misconduct for appeal, a party must not only object to the misconduct, but also request an admonishment. (See Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 406.) Stevens did object to the statement. The court then offered Stevens the opportunity to prepare a supplemental instruction in response to Styne's argument. So far as the record shows, Stevens failed to do so. Stevens therefore has waived the issue. Even assuming the issue is not waived, however, Stevens's position fails.
In closing argument, counsel for Styne presented the jury with a hypothetical example based upon Styne's testimony that he was to be paid 10 percent of the profits in return for commissions. Counsel stated: "When you think about what he was giving up, you heard Mr. Styne's testimony that one of the reasons he was getting this 10 percent, according to what Ms. Stevens said, was that he was not going to get any commissions for appearance. Now, we know that there were no appearance fees as such paid to Ms. Stevens for going on Home Shopping Network. Home Shopping Network bought her products, but Ms. Stevens herself said in her testimony that she always felt . . . appearance was worth something." Counsel continued, " ven though Ms. Stevens testified her appearances were significant in value, if you make them sort of insignificant and say, well, only 15 percent of all the revenues paid by Home Shopping Network represented her appearances. It was that insignificant, 15 percent worth. . . . [ ] Now, if that was the value of her appearance, 15 percent of the revenue, these significant appearances, and Norton Styne would have been getting appearance fees of 10 percent, you can sort of see for yourself that . . . you get a number which is about $1,300,000. So, being paid in the traditional way . . . would have been quite lucrative."
We conclude that the statement was within the scope of permissible argument. By placing a value on Styne's services, counsel did no more than counsel might in arguing a value for pain and suffering in a personal injury case. As counsel acknowledged, Stevens did not receive appearance fees. Styne did not receive commissions, and his recovery was not based upon the value of the commissions. Styne's counsel did not comment on the legality of Styn
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